I make this point to my bioethics students every semester. US regulations on what can be done to which research subjects illustrates this nicely: it is acceptable to kill mice, for example, in the course of research, while human subjects cannot be killed. And while research on chimpanzees isn’t banned, federal funding for such work has effectively ended.

Human embryos are both protected and not: the Dickey-Wicker amendment prohibited all federal funding on research involving the creation or destruction of embryos, but privately-funded research continues. And, of course, hundreds of thousands of embryos are created every year in fertility clinics across the country.

And then there’s the matter of abortion. Some consider the fertilized egg to be fully human, some the early embryo, some the fetus, and some, a baby. As I’ve noted elsewhere, I take a developmental view of the matter, figuring that the fetus gains personhood status at some point in the third trimester.

It’s clearly human tissue from the beginning—a Homo sapiens zygote won’t develop into a puppy—but when is it one of us, deserving of the same protections we grant ourselves? That’s what the fuss is all about.

II.

Well, partly. The other part of the fuss has to do with the status of the person gestating said embryo/fetus.

I say person because not everyone capable of gestating another being is a woman: some are transmen, and some don’t identify as a woman. It’s important to recognize that.

It’s also important to recognize that an attack on the right to decide whether to continue or terminate a pregnancy is an attack on women.

Whether you are a man or genderqueer or cis-gender, if you are capable of getting pregnant, then to the anti-abortionists that capacity in and of itself overrides all other identities and considerations and marks you as an untrustworthy being, i.e., a woman.

It doesn’t matter if we can’t or won’t get pregnant (in which case we are lesser women, unable or unwilling to fulfill or womanly destinies): what defines us, in the ideology of the antiabortionists, is the ability to gestate a zygote through to delivery. It might be conceded that we can do other things besides gestating, but once the egg envelopes the sperm or the conceptus begins burrowing into uterine lining or a clump of cardiac cells begin beating, then and only then can we become fully woman.

By which is meant: subordinate.

It’s not only the from-the-moment-of-conception antiabortionists who think this; cf this exchange after the somewhat-pro-choice Damon Linker referred to the fetus as a (tiny) human:

This is a perfectly normal kind of exchange among the somewhat-pro-choice: I don’t support outlawing abortion in the first weeks, but later on? Bien sûr!

What’s wrong with this? After all, didn’t I just say I hold to a developmental view of the fetus?

Well, do you think the pregnant person isn’t also able to make such judgements? Do you think she needs laws to tell her that an 8-week embryo is not the same as an 8-month fetus?

Saying you need laws and regulations to enforce this distinction is to say that you don’t trust pregnant people—women—to make this distinction for themselves.

Alabama Senator Clyde Chambliss extends this argument to its nonsensical ends, apparently arguing that a woman could only end a pregnancy as long as she didn’t know she was pregnant. That is, once Eve gains knowledge, she is no longer to be trusted to act on that knowledge.

The somewhat prochoicers might be unhappy that I tie their thoughtful uneasiness to Chambliss’s confident ignorance, but they are different points along the same line drawn to downgrade the paradigmatic woman—the pregnant person—to someone unable to make up her own mind.

When their new $70,000 princess-themed playroom is finished in March, Stella, 4 years old, and Presley, 2½, will have a faux gem-encrusted performance stage, a treehouse loft, and a mini-French cafe. A $20,000 custom carpet with colorful pathways will lead the girls to the various play areas.

“It’s going to be a pink explosion, with hearts and bows and crowns and tassels,” says their mother, Lindsay Dickhout, chief executive of a company that makes tanning products. The playroom will occupy about 1,500 square feet on the ground floor of the family’s 7,000-square foot home in Newport Beach, Calif.

I’d like to note that my apartment is about 400 square feet. I’d also like to note that if I could afford it, I’d love a bigger place (my id: MORE SPACE! MORE SPACE! MORE SPACE!) but 1500 sq feet seems extravagant (not that I’d turn that down, mind you. . .) and 7000, well, that might as well be 70,000. Jeez.

Onward:

Dahlia Mahmood, whose company Dahlia Designs has offices in Los Angeles and Ashburn, Va., created a $200,000 princess-fairy themed room for a 2-year-old girl in Virginia five years ago. She built a castle-shaped bed with turrets in which all the girl’s princess dolls could be stored. The room has its own entrance with a tiny door, too small for adults but just right for the little girl. Hand-painted bathroom walls were accented with Swarovski crystals.

When the girl turned 4, Ms. Mahmood returned to the project and redesigned the room, removing portions of the castle, expanding the bed to full size and installing two large, molded, fiberglass trees outfitted with twinkle lights, she said.

Now, why do I think this is more about the parents than the children? Perhaps this:

While the family was out of their Millstone Township, N.J., home, Ms. Blum Schuchart went in and installed the “royal prince nursery.” The room, which Ms. Urs estimated cost between $15,000 and $18,000, included a crib with blue satin ribbons, a Rococo-style dresser painted in silvery-gold and elaborate tufted blue curtains. The family saw the room for the first time when they came home from the hospital with their new baby, Luke.

“The boy’s room is very regal. I’ll be heartbroken when Luke wants it to be a big-boy Dallas Cowboys room,” despite her love for the team, Ms. Urs said.

And status, of course. It’s all about status:

Some companies say that when it comes to princess décor, Marie Antoinette-level pricing works best.

PoshTots, a Chesapeake, Va.-based online retailer of children’s furniture, sells expensive items including $35,000 princess carriage beds. A few years ago, the company introduced a $3,900 princess bed in the hope it would find more customers than the company’s nearly $10,000 option. But sales of the cheaper product were a dud. “If our customer wants to go princess, they’ll go for the $10,000 bed,” said Andrea Edmunds, PoshTots’ director of marketing.

Some parents do have a glimmer that indulging every offhand desire of the tot set just might have adverse long-term consequences, but one mother bravely waves aside such concerns:

“They have their whole lives to think practically and be efficient in the real world. This is about being creative,” said Ms. Dickhout. “I’m not at all worried about them becoming princesses.”

The USA Patriot Act issued by the US Senate on October 26, 2001, already allowed the attorney general to “take into custody” any alien suspected of activities that endangered “the national security of the United States,” but within seven days the alien had to be either released or charged with the violation of immigration laws or some other criminal offense. What is new about President Bush’s order is that it radically erases any legal status of the individual, thus producing a legally unnameable and unclassifiable being. Not only do the Taliban captured in Afghanistan not enjoy the status of POWs as defined by the Geneva Convention, they do not even have the status of persons charged with a crime according to American laws. Neither prisoners nor persons accused, but simply “detainees,” they are the object of pure de facto rule of a detention that is indefinite not only in the temporal sense but in its very nature as well, since it is entirely removed from the law and from judicial oversight. The only thing to which it could possibly be compared is the legal situation of the Jews in the Nazi Lager [camps], who, along with their citizenship, had lost every legal identity, but at least retained their identity as Jews.

Giorgio Agamben, State of Exception

The torture-cheerleaders are clear to state that the Bush Administration’s legal counsel cleared the techniques of torture—mainly by stating that these techs were not-torture—so it could be argued that the “detainees” were in fact covered by law, as “detainees”.

The torture regime of a decade ago was indeed a legal regime: by using the law to remove the protections of the law from those assigned “detainee” status, it covered those who would torture.

Hannah Arendt noted there is no particular dignity in the naked human being (although “naked” in this sense meant shorn of one’s membership in a state), which leaves that shorn human vulnerable to imprisonment, displacement, death.

The point, then, is the same: lacking status as a citizen, a prisoner, a person—as someone recognized by us—allows us to do anything to that non-person.

2. Losing status is not an injustice. It’s not fun, and it may feel unfair, but the loss of status in and of itself is not unfair.

Status can be earned or unearned, related to deeds, to relationships, to kinship, something taken or something granted. It almost certainly is culturally dependent—what earns you status in one culture may earn you contempt in another—and, depending upon that culture, may be related to justice or not. In cultures in which people think they deserve their status, they are likely more likely to believe that changes in the culture which lead to changes (loss) in status are unfair.

This could be seen as the aims of the civil rights movement in the US were absorbed into society and instantiated in governmental and corporate policy. As a result, those who had formerly only to compete with one another for position were instead forced to compete with those who had been kept out of the game.

To switch up the metaphor: white men could no longer count on always being first in line for jobs, promotions, college admissions, and sundry other social goods. They lost status.

That they did so, however, was not unjust. American society was formed out of the ungainly mess of egalitarianism, white supremacy, patriarchy, justice, toleration, conformity, segregation, integration, settlement, escapism, hard work, and luck, and as the polity shifted away from over supremacism in terms of both race and sex, the sense of “who was best (for the position, say)” shifted.

The liberationist in me would say Not damned nearly enough, but I do recognize the shift has occurred, and in a direction which has benefitted me and, I would argue, society as a whole: I think it is better to live in a society in which the placement of one’s reproductive organs does not determine one’s prospects in that society, or where people”will not be judged by the color of their skin but the content of their character.”

(I know that’s an overused phrase and not even his best one, but on the 50th anniversary of the speech, it seemed apropos.)

Now, I admit that I’m overloading “status” somewhat, leaving “justice” untouched. No, I don’t think justice exists outside of culture, but one of the enduring fictions of American culture is that, supremacism notwithstanding, justice bears some relationship to deeds, and that everyone deserves a fair shot at a decent life. The definition of justice didn’t change so much as did the “everyone” who deserved the fair shot: the pool of who were to be considered in matters of justice got a whole lot more crowded.

With the expansion of “everyone” to include almost every citizen, the status which had accrued to white male citizens simply for being white male citizens was necessarily lessened—not because status was taken away in an absolute sense, but, because it was granted to so many other people, meant relatively less.

To bring in yet another analogy: it’s not that white men got kicked out of the pool but that they had to share it. And yeah, if you’re used to having the joint to yourself, having to share it is a loss.

It ought come as no surprise that I give a Hard Look* to claims for religious exemptions to laws of general applicability: for all to be equal before the law, we must all be equally under the law. To exempt someone from the obligations of law while simultaneously granting her the protection of that same law is a form of favoritism which must be defended, not merely assumed.

Two points. One, this does not mean exemptions may never be granted. Exemptions are granted to religious institutions, for example, based on the freedom guaranteed in the First Amendment (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”). There are political and juridical tussles over the interpretation of these two clauses, but in the main there is a general sense that it is right and proper that the government not tell people how to practice their religion in terms of their religious ceremonies and their relationship to their fellow congregants.

Thus, churches, synagogues, mosques, temples, and sundry other religious institutions are exempted from laws regarding discrimination in hiring and firing of clergy and, for the most part, on working conditions. I may roll my eyes at arguments regarding the necessity of all-male clergy, for example, but I nonetheless agree that allowing the exemption to religious institutions is of no great concern to those outside of those institutions.

This, of course, is the case only insofar as the obligations of the religion apply only to the adherents of that religion. The free-exercise clause applies not only to congregants, but also to non-congregants, that is, you may voluntarily choose to align your behavior with your favored religious strictures, but you cannot force me to align my behavior to your religious strictures.

Point two: Certain religious institutions in the US are fighting for exemptions based on non-reciprocal understandings of religious freedom. What is new(ish) is not the non-reciprocal understanding—it wasn’t until the 20th century that the courts began to extend the protections of the First Amendment to (numerically) marginal religions, a process which continues, bumpily, today—but the fact that these institutions do, in fact, have to fight.

They can no longer wave the cross or the crucifix over every last act and expect dissidents, challengers, and the state to stop transfixed before them. There cannot presume exemption; they must defend it.

Rod Dreher, among others, bemoans the loss of status-entitlement of what he calls orthodox Christianity, a loss he sees as an erosion of religious freedom. That most Americans favor the use of contraception and increasingly favor same-sex marriage and equality for queer folk means that they are less willing to grant authority to those orthodox religious leaders—which means that they are less willing to grant legal leeway to those same leaders.

In this sense, I agree with Dreher that these churches and traditions are losing, but while he sees a loss of freedom, I see a loss of entitlement. John Holbo notes, correctly, that those who argue that religion deserves its entitlement rely on a notion of “an extra epistemic concession”, that is, that an argument ought to be granted respect or extra points because: Religion. It is in no way clear why this should be so.

And that’s the nub: in the past it rarely had to be made clear why this should be so; it just was. But now, for any number of reasons, that extra epistemic concession is no longer granted, with the result that the authority of those relying upon that concession has been degraded. “Because (God) says so” is no longer enough.

This hardly stops folks from trying to protect their entitlement. Since Americans do tend to respond to appeals to individual rights, the ground has shifted from authority to freedom. That a private business run by religious people might be required to provide benefits (read: contraception) to their employees which they, the employers, find religiously offensive, is seen as an infringement upon their (the employers’) freedom.

Some nations do, in fact, have different laws for different religions. In India, for example, Muslim men may take multiple wives, but Hindu men may not. Martha Nussbaum offered a limited defense of such variation in Women and Human Development, but even this was more a practical concession to the historical and political realities of India than a ringing defense of the idea of This law for thee and That law for thou.

In the US, however, we had the opposite: throughout the 19th and into the 20th century, there was a default Protestantism, and it was only through decades of court fights that recourse to that default was diminished. The Catholic Church, often victimized by this default, was nonetheless able to take advantage of the authority offered to Christianity in general in order to assume its share of privileges in spaces beyond the church steps. Unsurprisingly, they seek to maintain that authority-based privilege.

Dreher, in recognizing the loss of authority, has argued that orthodox Christians make their stand on the ground of religious freedom instead, but absent the status granted by that extra epistemic concession, it is difficult to see why one individual ought to prevail over another in competing claims of the exercise of that freedom.

As so many have already pointed, why should the religious beliefs of the employers ought to matter more than that of the employee, the doctor over the patient, the pharmacist over the customer, or the taxi driver over the passenger?

Those who seek to protect themselves from offense have every right to do so: they get to make the argument in the political and cultural realms and in the courts.

They just don’t get to presume a win.

*h/t Robyn Anderson, who uses this term to great effect on Love & Hisses